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The recent Review Commission case of Sec’y of Labor v. Lake Erie Constr. Co., OSHRC, No. 11-0146 still leaves Lake Erie Construction Company waiting for a final decision on the merits. However, the Review Commission case is already a landmark decision because it overrules a 34 year-old precedent established in the case of Gerard Leone & Sons, Inc., 9 OSHC 1819 (OSHRC 1981.) (“Gerard Leone”). Gerard Leone involved the application of the construction motor vehicles standard, § 1926.601(a), which regulates such things as brake lights, audible warning devices and seat belts on motor vehicles used in construction. InGerard Leone the Commission held in a 2-1 decision that § 1926.601(a), “limits the standard’s applicability by vehicle and not by location.” Id. at 1820. In short, that decision held that the requirements for motor vehicles applied if the vehicle at issue is the type that operates off-road regardless of whether the location was on-highway but closed to the public.

In the Lake Erie case, an employee was electrocuted while working on a project which involved removing guardrail posts along a highway that was closed to traffic at the time of the accident. The guardrail posts were removed using a “pounder truck,” part of which either contacted or came close to contacting power lines, causing electricity to arc or travel to an “Attachment” and chain, thus electrocuting the employee who was holding the chain. Lake Erie received a citation for $70,000 for a willful violation of 29 C.F.R. § 1926.600(a)(3).

The question at issue was whether or not the “pounder truck” was covered under Subpart O, 29 C.F.R. § 1926.601(a) which states:

Coverage. Motor vehicles as covered by this part are those vehicles that operate within an off-highway jobsite, not open to public traffic. The requirements of this section do not apply to equipment for which rules are prescribed in 1926.602.

(emphasis added.)

The Secretary argued that based on the precedent set in Gerard Leone, the pounder truck was the type of vehicle which operated off-road and therefore was a covered vehicle. Lake Erie’s counsel argued that since the accident occurred while the pounder truck was on a highway, it was not covered under § 29 C.F.R. 1926.601(a) and, therefore, the citation was invalid.

In 2012, Administrative Law Judge Sharon D. Calhoun affirmed the citation but reduced the penalty to $35,000. The judge decided, based on the binding precedent set in Gerard Leone,that the pounder truck was a covered vehicle. However, she added that she felt the decision in Gerard Leone was wrong and in its petition for discretionary review, Lake Erie counsel noted that similar doubts have been raised in other cases.

In reaching its decision, the Commission decided that “(s)pecifically, reading § 1926.601(a) as addressing the type of vehicle operated rather than the location of its operation is contrary to the provision’s language – ‘vehicles that operate within an off-highway jobsite, not open to public traffic.'” Other cases over the years have argued that the language of this provision is plain and deliberate – there is no reference to the “type” of vehicle, nor is there any discussion of vehicles that can operate within an off-highway jobsite. The provision simply refers to “vehicles that operate within an off-highway jobsite, not open to public traffic.”

The Commission’s decision on September 24, 2015 held “[W]e overrule Gerard Leone’sholding that the language of § 1926.601(a) applies to motor vehicles based on their particular type. Relying on the plain language of the provision, we now conclude that it covers motor vehicles based on thelocation of their operation, i.e. ‘within an off-highway jobsite, not open to public traffic.'”

The case has now been remanded to Judge Calhoun to determine “whether, at the time of the alleged violation, the pounder truck was a ‘[m]otor vehicle [] … that [was] operat[ing] within an off-highway jobsite, not open to public traffic.'”

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